Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 1719 August 2021
The Personal Injury Commission (Commission) commenced on 1 March 2021 and, with it, the publication of the majority of decisions issued by the Commission.
To help you navigate the recent decisions of the Motor Accidents Division (MAD) of the Personal Injury Commission, we are publishing weekly the relevant headnotes of published decisions with a link to the decisions on Australasian Legal Information Institute (AustLII) website.
All legislative provisions are from the Motor Accident Injuries Act 2017 unless otherwise noted.
Miscellaneous claims assessment
Hui v NRMA Insurance Limited  NSWPIC 277
Member: Susan McTegg
Miscellaneous claims reviews—allegation of 50% contributory negligence—accident at intersection governed by traffic lights.
The claimant was driving a motor vehicle. He made a right-hand turn at an intersection governed by traffic lights. His vehicle was hit by the insured vehicle travelling straight through the intersection.
The police determined that the insured vehicle travelled through a red traffic light. The insured driver stated that the light turned from green to yellow just before he entered the intersection, and that the claimant’s vehicle commenced the turn after the insured vehicle was well into the intersection.
A witness travelling behind the insured vehicle stated that the insured vehicle entered the intersection against a red light. Dashcam footage from the claimant’s vehicle showed that the insured vehicle did not slow as it reached the intersection, whilst the vehicle behind the insured vehicle and a vehicle travelling in the lane next to it both came to a stop.
The insurer determined that the claimant was wholly or mostly at fault. On internal review this decision was overturned, and it was decided that 50% contributory negligence should be applied on the basis that the claimant failed to keep a proper lookout and failed to respond appropriately to the approach of the insured vehicle. The claimant sought assessment in the Commission.
The Commission member found that the insured vehicle had entered the intersection against a red light, and that contributory negligence should be assessed at 10%.
Fakhreddine v AAI Ltd t/as AAMI  NSWPICMR 32
Merit Reviewer: Ray Plibersek
Merit review—costs—application made for assessment of injuries, but the medical assessment did not proceed—claimant claims legal costs. The insurer determined that the claimant had suffered minor injuries. Her solicitors made an application for assessment of injuries in the Commission. An assessment was arranged with Assessor Michael Hong, but did not proceed. Her solicitors sought costs for the application in the amount of $1,660 plus GST. The insurer declined payment of those costs, submitting that entitlement to costs follows the completion of a medical assessment (which, in this case, did not eventuate).
The merit reviewer determined that some legal costs are available for work in preparing, lodging, and conducting an application for medical assessment. No itemised bill was provided by the claimant’s solicitors. Costs were allowed in the amount of $1,000 plus GST.
ACD v QBE Insurance  NSWPICMR 31
Merit Reviewer: Maurice Castagnet
Merit review—amount of weekly payment of statutory payments after 78 weeks—earning capacity.
The claimant’s pre-accident weekly earnings were assessed at $869.96 net per week. The claimant agreed with this decision.
The insurer conducted a review of the claimant’s entitlement to weekly payments after the second entitlement period. The certificate of capacity assessed the claimant as being fit to work eight hours per day, three days per week. Based on his hourly rate of pay, this equated to an earning capacity of $594.17 net per week. The insurer determined that the claimant was entitled to 85% of the difference between his pre-accident average weekly earnings and his current capacity, which amounted to ongoing weekly payments of $234.42 net per week.
The claimant’s GP subsequently reduced their opinion of the claimant’s work capacity. Both parties relied on medico-legal evidence. Medico-legal evidence served by the claimant concluded that he had no earning capacity.
The merit reviewer found that the claimant had no earning capacity.